State v. Uhing , 301 Neb. 768 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/21/2018 08:08 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. UHING
Cite as 301 Neb. 768State of Nebraska, appellee, v. Joshua Uhing, appellant.
___ N.W.2d ___
Filed November 30, 2018. No. S-18-375.
1. Jurisdiction. A question of jurisdiction is a question of law.
2. Statutes. Statutory interpretation presents a question of law.
3. Judgments: Appeal and Error. Appellate courts independently review
questions of law decided by a lower court.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
5. Appeal and Error. Appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal.
6. Legislature: Courts: Time: Appeal and Error. When the Legislature
fixes the time for taking an appeal, the courts have no power to extend
the time directly or indirectly.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Appeal dismissed.
Thomas C. Riley, Douglas County Public Defender, Jeanine
Tlustos, and Lori A. Hoetger for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Joshua Uhing appeals the district court’s order overrul-
ing his motion to reconsider the denial of his motion to
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. UHING
Cite as 301 Neb. 768transfer to juvenile court under Neb. Rev. Stat. § 29-1816(Supp. 2017). For the reasons set forth herein, we dismiss the
appeal for lack of jurisdiction as untimely under § 29-1816(2)
and (3)(c).
BACKGROUND
Uhing was charged in the district court with two counts of
sexual assault in the first degree, Class II felonies, and one
count of incest with a victim age 17 or under, a Class IIA
felony. The alleged victims were Uhing’s sisters. Uhing was
born in April 2000 and, on the date the charges were filed, was
17 years old.
In October 2017, within 30 days of being charged, Uhing
filed a motion to transfer to juvenile court. On December 15,
the court overruled Uhing’s motion to transfer. The court’s
order noted the significance of the charges, Uhing’s age, the
likelihood of Uhing’s need for long-term treatment if found
guilty, the short amount of time Uhing had before reaching
majority, concern for public safety, and the lack of ability of
the juvenile court to provide Uhing meaningful benefit. The
district court thus retained Uhing’s felony charges in adult
criminal court, and Uhing did not appeal this order.
On February 8, 2018, Uhing filed a motion captioned
“Motion to Reconsider Denial of Defendant’s Motion to
Transfer to Juvenile Court.” The motion did not cite the spe-
cific statutory or legal authority that provided a basis for the
motion. Uhing alleged that in the time since the order was
issued, he underwent an evaluation that recommended offense-
specific treatment and he was accepted into a youth psycho-
sexual center which believed Uhing could complete treatment
prior to his 19th birthday. Uhing claimed that this information
was unavailable prior to the hearing on the motion to transfer
and that in the interest of justice, he should be allowed to pre­
sent evidence of these factual allegations for consideration.
After a hearing on Uhing’s motion to reconsider, the court
entered an order on March 19, 2018, overruling the motion.
The court’s order stated:
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. UHING
Cite as 301 Neb. 768[Uhing] has been abused since he has been at least
ten years old and is alleged to have been involved in
sexual abuse of his sisters for some time. [Uhing] has sig-
nificant issues of abuse and neglect, family relationship/­
abandonment, mood, depression, sexual/mental health,
and substance abuse. The program[] as set forth in the
additional evidence is under optimal conditions and it
does not address the need or length of the aftercare pro-
grams after the nine month to twelve-month treatment.
Based upon this additional evidence and the evidence
offered at the initial hearing on December 8, 2017, this
Court is still concerned that thirteen and a half months
is not adequate time to resolve [Uhing’s] significant
and multiple issues. As such, . . . in consideration of
all the evidence, and the requirements pursuant to Neb.
Rev. Stat. § 43-276, this Court still has great concern
for public safety and the ability of a Juvenile Court to
provide long term meaningful benefit to [Uhing] in the
thirteen months that is remaining until his nineteenth
birthday.
On April 9, 2018, Uhing appealed the order overruling
his motion to reconsider. Uhing’s notice of appeal stated:
“This appeal stems from the Order overruling the Motion
to Reconsider. Said Order is dated March 19, 2018 and this
appeal is filed pursuant to LB11 which went into effect March
29, 2017.” Uhing asserts this court has jurisdiction to consider
the district court’s order on the motion to reconsider, because
the underlying order on the motion to transfer was a final,
appealable order.
The State, in turn, argues this court lacks jurisdiction of
the motion to reconsider, because the motion is not a final,
appealable order. The State asserts that a rule which treats
as a final, appealable order any order overruling a motion to
reconsider an order on a motion to transfer is overly broad and
would undermine appellate deadlines. We granted a petition to
bypass submitted by the State.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. UHING
Cite as 301 Neb. 768ASSIGNMENTS OF ERROR
Uhing assigns, restated, that the district court abused its
discretion in overruling his motion to reconsider the court’s
denial of his motion to transfer to juvenile court, because the
State failed to meet its burden to show a sound basis for retain-
ing Uhing’s case in district court.
STANDARD OF REVIEW
[1-3] A question of jurisdiction is a question of law.1
Statutory interpretation presents a question of law.2 Appellate
courts independently review questions of law decided by a
lower court.3
ANALYSIS
[4] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties.4
[5] Uhing argues that the denial of a motion to reconsider
is a final, appealable order.5 In support of this argument,
Uhing contends, for the first time on appeal, that his motion
to reconsider was brought under Neb. Rev. Stat. § 25-2001(Reissue 2016). However, there is nothing in the record indi-
cating Uhing ever presented this theory to the district court.
Appellate courts do not generally consider arguments and
theories raised for the first time on appeal.6
1
Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284(2017).
2
Id.3
Id.4
Id.5
See Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721(2010).
6
State ex rel. Rhiley v. Nebraska State Patrol, ante p. 241, 917 N.W.2d 903(2018).
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. UHING
Cite as 301 Neb. 768Section 29-1816(2) provides alleged juvenile offenders the
ability to move for a transfer of their case from a county or
district court to a juvenile court. This motion must be made
within 30 days after arraignment “unless otherwise permitted
by the court for good cause shown.”7 Uhing apparently chose
not to attempt to make this showing of good cause and, thus, is
left only with taking an appeal.
Section 29-1816(3)(c) provides the procedure for appealing
an order on a motion to transfer and states:
An order granting or denying transfer of the case from
county or district court to juvenile court shall be con-
sidered a final order for the purposes of appeal. Upon
entry of an order, any party may appeal to the Court of
Appeals within ten days. Such review shall be advanced
on the court docket without an extension of time granted
to any party except upon a showing of exceptional cause.
Appeals shall be submitted, assigned, and scheduled for
oral argument as soon as the appellee’s brief is due to be
filed. The Court of Appeals shall conduct its review in
an expedited manner and shall render the judgment and
opinion, if any, as speedily as possible.
Summarized, subsections (2) and (3)(c) of § 29-1816 pro-
vide that an alleged juvenile offender can move for transfer to
juvenile court within 30 days of the juvenile’s arraignment and
that either the juvenile or the State can appeal an order on the
motion within 10 days of its entry. This procedure is in contrast
to the typical appeal process in which a party has 30 days from
the entry of a judgment or final order to appeal the decision
of a district court unless a party has filed a timely terminat-
ing motion.8
In previous appeals of a denial of a motion to transfer to
juvenile court, we have held that a trial court’s denial of the
7
§ 29-1816(2).
8
See Neb. Rev. Stat. § 25-1912 (Supp. 2017).
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301 Nebraska R eports
STATE v. UHING
Cite as 301 Neb. 768motion was not a final, appealable order.9 In response to our
decision in State v. Bluett,10 the Nebraska Legislature amended
§ 29-1816 to include the language that “[a]n order granting or
denying transfer of the case from county or district court to
juvenile court shall be considered a final order for the purposes
of appeal” and to impose the 10-day limitation of the time to
file the appeal. The Legislature, however, did not include lan-
guage that filing a motion to reconsider would terminate the
appeal period.
Here, Uhing filed the underlying motion to transfer within
30 days of his arraignment. However, he failed to appeal
the order denying this motion within the 10 days required
by § 29-1816(3)(c). Therefore, we lack jurisdiction to con-
sider any subsequent appeal of the order on Uhing’s motion
to transfer.
[6] Uhing’s motion for reconsideration does not cure this
jurisdictional deficiency. Allowing the appeal of Uhing’s
motion to reconsider would have the effect of extending the
time for filing the original appeal. But when the Legislature
fixes the time for taking an appeal, the courts have no power
to extend the time directly or indirectly.11 Because the motion
to reconsider did not extend the time for appeal, which had
run 10 days after the transfer motion was denied, we lack
jurisdiction to consider this appeal.
CONCLUSION
For the reasons stated above, we dismiss the appeal for lack
of jurisdiction.
A ppeal dismissed.
9
See State v. Bluett, 295 Neb. 369, 889 N.W.2d 83 (2016).
10
Id.11
State v. Lotter, ante p. 125, 917 N.W.2d 850 (2018).